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September|October 2002
The Hours t By Niki Kuckes
The Blood-Money Myth By Tom Baker
Monsoon in a Teacup By Ratna Kapur
Smog & Mirrors By Alec Appelbaum
Prosaic Justice By Anthony Sebok

Prosaic Justice

In America, legal advocates for slavery reparations are relying on the cold logic of property law, not the moral force of human rights. It might well work, but at what cost?

By Anthony Sebok

Last March, a woman filed a class-action lawsuit in Brooklyn on behalf of the descendents of the roughly eight million Africans enslaved in the United States between 1619 and 1865. The suit was the first of its kind—it seeks compensation from three active U.S. companies that allegedly profited from the slave trade—but it hardly came as a surprise. Over the past few years, U.S. courts have been the battleground for a number of attempts to redress large-scale historical wrongs. Recent noteworthy cases have concerned the use of slave labor by German companies during the Holocaust and the theft of property by Swiss banks and European insurance companies during World War II.

Lawsuits like these tend to provoke strong, morally charged reactions. In American courtrooms, however, the language in which historical justice is being debated has taken on an unusual character. In other parts of the world, advocates for historical justice acknowledge that they're pursuing a fundamentally new form of law warranted by the relatively recent appreciation of human rights. But in this country, lawyers active in the Holocaust and slavery cases have taken a different tack.

In the courtroom and in the media, American lawyers often describe their reparations suits
as human rights cases, and the rhetorical effect is powerful. But when pressed to actually defend their cases, these lawyers inevitably abandon the vocabulary of human rights and repair to the more quotidian language of property and restitution law. The legal claim they make against the banks, insurance companies, and corporations that assisted genocide and slavery is not that the firms committed those acts, but that they didn't return the property or pay the wages of the victims of genocide and slavery.

As odd as that may sound, there's nothing obviously wrong with this American style of historical justice. You might argue that when it works—consider the multi-billion-dollar settlements in the Swiss and German Holocaust cases—it needs no further defense. The successful plaintiffs certainly aren't complaining. But that argument assumes that the forms of law are mere tools, and that it doesn't matter how you describe to a court why you have a right, as long as you get the result you want. As the most recent slavery case demonstrates, however, there is a considerable risk in taking this point of view.

It's impossible to fully understand the Brooklyn class-action suit without realizing that in all important respects it's a creature of necessity. Much about the suit, from its key arguments to its selection of defendants, reflects a strategic concession. Start with the defendants. The first thing to note is that the U.S. government is not named in the suit, despite the fact that it legalized and supported slavery. The most likely explanation for this omission is that there's no way to sue the government on these grounds. In 1995, lawyers tried to sue the government for failing to enforce the 13th Amendment, which outlawed slavery. But in a case called Cato v. United States the Ninth Circuit Court of Appeals held that the United States was protected by the doctrine of sovereign immunity.

The suit also avoids naming individual property owners, despite the fact that there are countless people in the United States today who own land, buildings, and other assets that originally belonged to slave owners. Here, too, the most plausible reason for not suing is the difficulty of doing so. Most current holders of tainted property acquired those assets without knowing about their illegal origin. The law treats those property owners as "bona fide" purchasers or heirs—and immune from suit.

A corporation, on the other hand, can't raise that defense so easily, since an ongoing corporation that existed in 1850 is considered the same "person" it was when it received its ill-gotten gains. Which brings us to the three defendants named in the suit—FleetBoston, Aetna, and the railroad company CSX. While CSX's predecessor is accused of actually having used slave labor, the other two defendants are named because of their facilitating role in the slave trade. FleetBoston's predecessor, Providence Bank, is accused of lending money to John Brown, a notorious slaver. And Aetna is accused of "unjustly profiting" from slavery by selling insurance to slave owners "against the loss of their human chattel."

The complaint accuses the three defendants of a number of things. The first charge is that the defendants, in a conspiracy with other, as-yet-unnamed defendants, committed torts like false imprisonment, battery, and assault. The complaint also accuses the defendants of having been unjustly enriched by profits they gained through these offenses. The unjust-enrichment argument contends that slaves produced labor for which they never received compensation, since their unpaid "wages" remained in the coffers of corporations like CSX. As a separate count, the complaint alleges "Human Rights Violations," in which the defendants are accused of having "furthered the commission of crimes against humanity"—torture, rape, and summary execution.

The lawyers who drafted the complaint are no doubt eager to reproduce the success of the Holocaust slave-labor cases, which also alleged unjust enrichment and human rights abuses. (Some of the complaints in those cases were written by some of the authors of the Brooklyn complaint.) But the lessons of the Holocaust litigation aren't entirely encouraging. Before the Holocaust cases were settled, a handful of written opinions clarified important matters of law that bear on the slavery case. The sad legal truth is that the only viable strategy remaining for the slavery-reparations lawyers appears to be the unjust enrichment claim.

The Holocaust courts held that a shared consensus among civilized nations at the time of the Holocaust established that slave labor was a violation of customary international law. The Brooklyn lawyers, however, will have a difficult time establishing that slavery was proscribed by international law in 1619. In addition, even if they could demonstrate that the defendants violated 17th-century customary international law, the Brooklyn lawyers will face a statute-of-limitations problem. In the Holocaust slave-labor cases, for instance, the courts determined that the civil claims that the plaintiffs had brought under the Alien Tort Claims Act had a statute of limitations of ten years.

The unjust-enrichment claim, on the other hand, has several legal virtues. Since the plaintiffs are suing for the value that their unpaid wages have accumulated over the years, it makes sense to sue the defendants who have been named. Many corporations are the same legal entity today that they were in 1800, and their structure and record-keeping make it relatively easy to track how a dollar wrongfully gained 200 years ago was reinvested until today.

The unjust-enrichment claim is also able to sidestep the problem of the statute of limitations. It's possible to do that if the victim was prevented from discovering his injury until years later. (If someone secretly takes money out of your bank account, the statute of limitations doesn't begin to run until you discover—or should have discovered—that the money was taken.) The injuries to slaves that resulted from forced labor and physical abuse were known to the victims at the time they occurred, so those offenses are subject to the statute. By contrast, in the Brooklyn slavery complaint, the plaintiffs allege that until recently descendants of slaves had no way to discover how much profit companies like FleetBoston and Aetna had gained from slavery: No real reckoning of the lost property was conducted by academics and investigators until the end of the 20th century.

In the past, the unjust-enrichment argument has proved successful. Early Holocaust cases focused on assets—tangible property, sometimes jewelry, sometimes money—that had been deposited in Swiss banks. It was obvious why the banks were obliged to return these assets to their rightful owner (or their heirs), and why any bank that sold these assets was obliged to repay their value. From there, it was a small step to include unpaid insurance policies as property. It was another small step to claim that the labor of the Holocaust victims was property: Labor, like money in a bank account, should be returned to its original owner if acquired unjustly. In the end, the unjust-enrichment argument persuaded hundreds of German and American companies to contribute approximately $2.5 billion to reimburse thousands of surviving Holocaust laborers.

Here, however, the morally frustrating feature of this case rears its head. If you want to be overly literal, to enslave someone is to force him to work without pay. But that's an impoverished understanding of what happened during the Holocaust and during the period of American slavery. In the language of unjust enrichment, though, it makes no difference to your claim whether I appropriate your labor by forgetting to pay you or by forcing you to work because I believe you are unworthy of the legal rights I enjoy. In either case, the remedy you would ask for would be measured by what was gained from the stolen labor. It wouldn't be measured by the harm I caused to you, your community, or the world.

So the class action filed in Brooklyn requires its plaintiffs to state to the court that the legal claim that's been preserved and carried forward for generations of African-Americans isn't that their ancestors were kidnapped from their homes, their political freedoms denied, and their culture obliterated—but that they weren't paid for the work they did under those conditions. This so misdescribes what would likely be the real meaning of this lawsuit to African-Americans that the strict adoption of property language in the pursuit of legal victory seems to carry a considerable cost.

One response to this concern is to note that the law makes productive use of "legal fictions" all the time. As the legal philosopher Lon Fuller put it, legal fictions are like scaffolding, designed to support a novel conclusion that the judge feels is correct, but that the judge suspects can't yet be stated in non-fictitious terms. In the slavery reparations case, the fiction isn't that the slaves shouldn't have been paid: In theory, they should have been. The fiction is why their heirs are being paid now. The pose fools no one, and it's not supposed to. In the Holocaust suit, all the parties knew why German companies were being targeted for 50-year-old wage claims. Similarly, if the American slavery suit results in a settlement, it will be widely perceived as payment for centuries of institutional racism, not misplaced property.

If it's effective, and no one is fooled, what's the harm? In her article "Market Inalienability," the legal scholar Margaret Radin notes that there is a real risk in adopting the rhetoric of property when discussing serious issues like slavery: "Bodily integrity is an attribute and not an object," she argues—and to confuse one with the other degrades the human values at stake. Radin suggested that while many scholars believe they are wielding conceptual tools exactly as they want to when they "borrow" the language of the market—often to appear hard-nosed—they risk becoming unwilling allies to the idea that everything can be reduced to forms of money and property. Are the representatives of the victims of slavery falling into the same trap, by employing a legal tactic that frames the right to freedom in terms of the right to property?

If so, how should we handle these cases? It's useful to consider the example of Judge Edward Becker, chief judge of the Third Circuit Court of Appeals. In 1979, Becker, then a federal trial judge in the Eastern District of Pennsylvania, heard a curious case. Forty-two years after the death of the singer Bessie Smith, a group of people filed suit on her behalf against Columbia Records. The plaintiffs claimed that the contracts between Columbia and Smith were void because of "corporate racism [that] constituted an intentional violation of the civil rights of Smith."

Becker's decision is a model of sensitivity and thoughtfulness. Smith's representatives argued that though she had died in 1937, the clock on the statute of limitations did not begin ticking until 1972, when research first revealed the nature of Columbia's swindle. But at the time of the suit, the statute of limitations for contract actions in Pennsylvania was six years, so even if the clock hadn't started to tick until 1972, by the time the suit was filed, the statute of limitations had expired. While it would have been appropriate to dispose of the case without fanfare, Becker chose to write a 53-page decision, parsing each of the plaintiffs' arguments—before dismissing the case.

The facts of the case testify to the injustices suffered by Smith and her family, and the plaintiff's arguments, though 50 years too late, were, as Becker noted, "ingenious." More important, Becker treated the arguments for what they were—legal fictions. As he explained in his opinion, he spent 53 pages on these fictions because, given "the consequent importance of this case, we can do no less."

The Brooklyn slavery class action deserves to be treated just as cautiously, and taken just as seriously. We must be mindful of the potential costs of legal fictions, and remain open to other options. As foreign nations have taught us, novel legal institutions—including reparations programs funded by the government—offer alternative routes to historical justice. We must not assume that because the operation of American racism resulted in the elimination of the legal rights of millions of slaves and their descendants, their claims must be revived in the courts by any means necessary.

Anthony Sebok is a professor at Brooklyn Law School. He writes about modern tort law for Writ, an online magazine.

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